A British supreme court would sweep away the triple office of the Lord Chancellor. Derry Irvine should bow to the inevitableby John Morrison / August 20, 2002 / Leave a comment
Published in August 2002 issue of Prospect Magazine
The writing is on the wall-or on the Pugin wallpaper-for the medieval office of state occupied since 1997 by Lord Irvine. While Irvine has many critics, nobody is suggesting that he has done anything wrong. But the political and legal landscape has changed around him, partly as a result of his own actions. There is a certain irony in the fact that one of the prime movers of Labour’s constitutional changes, including the 1998 Human Rights Act and the reform of the House of Lords, now appears to have prepared the groundwork for his own abolition. The ignominious collapse of Irvine’s proposals for a largely nominated second chamber has weakened his authority. The next stage of Lords reform will be in the hands of a 24-strong joint committee of both Houses where the government will have no overall majority and whose recommendations may go further than Irvine would like. If the committee follows the blueprint laid down in a groundbreaking report last February by the Commons Public Administration Committee, it will opt for a mainly elected second chamber with between 300 and 350 members. Consensus in the Commons has moved away from Lord Wakeham’s Royal Commission proposal for a large part-time chamber to a much smaller, more professional body with full-time obligations. With as few as 60 or 70 seats to be allocated to non-party crossbenchers, it will be hard to find space for law lords, who have to remain politically inert. If they leave, then the Appellate Committee where they sit as a final appeal court will have to be replaced by an independent body. This was one of the arguments used recently by Lord Bingham, the senior law lord, when making the case for an independent supreme court in Britain. Space in the Palace of Westminster is at a premium and there is a strong case for moving the law lords out of their cramped House of Lords corridor to a separate building. More importantly, the anomaly by which the highest appeal court exists as a committee of the legislature is increasingly seen as indefensible. Even pragmatists such as Bingham feel that it is time to accept the logic of the Human Rights Act and pay more attention to European jurisprudence, which takes a stricter view of the need for all courts to be seen to be impartial, one of the key principles of the European Convention on Human Rights. An independent supreme court would not only be better funded, but would dispel the kind of international misunderstandings generated by the muddled handling of the Pinochet case in 1998. Nobody expects such a major reform to take place in this parliament, but the Public Administration Committee report has cleverly pointed the way to a solution by proposing that the law lords (and the Church of England bishops) should leave the second chamber at the next general election but one. If the joint committee embraces this option, the process of setting up a supreme court will have started. How would this affect the Lord Chancellor’s position? In Irvine’s view, not a jot. But the opinion of most legal scholars and senior lawyers is that his office could no longer continue in its present form if the law lords were to be removed from the second chamber. Lord Steyn, his fiercest critic, argues that “the Lord Chancellor’s privilege is the only real obstacle to the creation of a supreme court.” In other words, the law lords form a kind of buoyancy tank to keep the leaky vessel of the Lord Chancellor afloat in the second chamber; without them, he would sink. If the law lords are minor violators of the separation of powers, then the Lord Chancellor is a serial offender. He combines the roles of senior cabinet minister and head of the judiciary in England and Wales with the right to preside, not only over the Appellate Committee, but over the Judicial Committee of the Privy Council as well. The conflict of interest between his twin roles as minister and judge has become more acute. Unlike his predecessors, who were marginal figures in political terms, Irvine has been a powerful influence in the Blair government, chairing several cabinet committees and sitting on many more, as well as heading one of the highest spending departments in Whitehall. While determined to go down in history as a legal reformer, Irvine’s enthusiasm for modernisation has stopped short of anything that would affect his own position. To the irritation of many women and ethnic minority lawyers he has fought off attempts to create a Judicial Appointments Commission, which would end his sole power to appoint judges and QCs. He has robustly defended his right to continue to sit as a judge, which he has exercised once in the Privy Council and eight times in the Appellate Committee. Yet picking cases which he can judge has become more and more tricky, forcing Irvine to restrict himself to minor matters of private law in whose outcome the government has no interest. Many lawyers believe that soon his right to sit even in these uncontroversial cases will be successfully challenged in Strasbourg. A withdrawal from sitting on the bench by the next Lord Chancellor would make it difficult to maintain the fiction of his position at the head of the judiciary. It would remove one of the three hats he wears. It is also logical to assume that a properly reformed second chamber will require a full time presiding officer independent of the government, though he or she might retain the historic title of Lord Chancellor. So much for the second hat. This would leave Irvine’s successor with his core ministerial duties. It is hard to see why these should continue to be performed by an unelected member of the upper house, rather than a secretary of state accountable to the Commons. Some senior judges, including Bingham, worry that killing off the Lord Chancellor would remove the one senior figure in cabinet who has the institutional clout to protect them against future home secretaries. They do not share Steyn’s view that the Lord Chancellor’s claim to defend the interests of the judiciary in government is bogus because he is ultimately bound by cabinet responsibility. One told me: “A minister of justice would be walked all over by the Home Office, a very powerful department, and the holder of the office in the House of Commons would be a career politician, who would hope he would go on to something better.” The law lords recall how in 1997 Jack Straw tried to fire off a bullying letter to magistrates but was blocked by Irvine. Straw’s successor David Blunkett, who takes pride in his contempt for the legal profession, tried unsuccessfully after the 2001 election to seize control of the courts from the Lord Chancellor. This is why Bingham insists that if the Lord Chancellor’s office is reformed, there must be a reliable defence for the judges against the hobnailed boots of Blunkett and his successors. The price of judicial independence is eternal vigilance, but the creation of a supreme court whose president would enjoy a high public profile would in itself discourage interference by the executive. Separation of powers may be a principle that is applied only partially in Britain, but a demarcation of responsibilities between government and other institutions can be of benefit to both sides. The decision to give independence to the Bank of England, replacing a patchwork of fudge and convention, established a framework in which interest rates are set at arm’s length from the Treasury, and people understand the chain of responsibility. Similar clarity is needed at the top of the legal system, and an end to the Lord Chancellor’s multiple roles is essential if it is to be achieved. Parliament’s joint committee on Lords reform must not sidestep this issue.